28 N.W.2d 884 | Wis. | 1947
Lead Opinion
On June 29, 1944, when the case came on for the new trial above referred to there was an application by the attorney for Mildred Wolf, the only person who had filed objection to the probate of the will, who was then in the armed service, for a stay of proceedings until his client could get a furlough to enable her to be in attendance at the trial. This motion was denied. At this hearing the court was informed that Harold Wolf was in the armed forces in New Guinea. His forwarding address was given, and the statement was made that the *585 attorney for Mildred Wolf had had correspondence with him. The court at this hearing, on motion of the proponent of the will, appointed Mr. Redford "to represent Harold Wolf who is in the military service." Mr. Redford having been informed of his appointment appeared and made application for a "reasonable continuance" to enable him to examine the file and determine whether there was probability of Harold's interests being forwarded by the contest, and stated that he would like to make a further motion for a stay to enable him to consult his client. The trial judge then stated that he would take the testimony offered and then adjourn the case to July 6th to give Mr. Redford ample time to make an investigation and "array" his witnesses and present the matter as fully as possible "under the circumstances." It does not appear that any motion was made by Mr. Redford other than above stated.
After the proceedings above stated as occurring on June 29th the retrial was had and judgment entered admitting the will to probate. Mr. Lichtsinn appeared for and represented Mildred Wolf on the retrial and after rendition of judgment appealed the case to this court and briefed and argued the case in Mildred's behalf therein. He was competent and well able fully to protect the interests of his client, both on the retrial and on the appeal, and by his so doing the interests of Harold Wolf, whose interests were identical with Mildred's, would obviously be fully protected. Mr. Redford participated in the retrial as in behalf of Harold but offered no testimony and after judgment filed a notice of appeal in his behalf. He appeared personally before the supreme court when the case was argued and' signed a brief with Mr. Lichtsinn as in her behalf. This court on that hearing affirmed the judgment. See Will of Ehlke,
On March 10, 1946, the case again came before the county court for further proceedings. Harold had then returned to Milwaukee and been discharged from service and Mr. Redford then withdrew his appearance for him. Neither Harold nor Mildred wished to give testimony on that hearing and judgment was again entered admitting the will to probate. Mrs. Ramlow was appointed executrix and her account came on for hearing and was approved on March 26, 1946, and she was then discharged as executrix and her bondsman released.
On May 16th Mr. Redford procured an order requiring the executrix to show cause why his account for services and disbursements in behalf of Harold should not be paid out of the funds of the estate. Hearing was had pursuant to this order on which it appeared that during all the time that Mr. Redford was rendering his alleged service Harold was in New Guinea or the Philippines. It also appeared that Mr. Redford during all this time had not communicated with Harold to determine his wishes respecting an appeal or a retrial or made any effort to do so. It was conceded by the attorney for the estate that *587
Mr. Redford put in time and made disbursements allegedly in behalf of Harold as shown by his account, but objection was made to any allowance to him therefor because they were unauthorized and unnecessary. The court denied any compensation on the ground that there was "no authority for allowing any fee whatever," and on the further ground that Mr. Redford had not ascertained or made any attempt to ascertain whether Harold wished any appeal or retrial in his behalf to be taken. The total time stated in Mr. Redford's account as expended pursuant to his appointment, and in Harold's behalf, in attending the county court trial, appearance in the supreme court, preparation for retrial and appearance in the supreme court and consultations with Mr. Lichtsinn, Mildred's attorney, is thirty-one days. His total expenses, including $35.80 for a transcript of proceedings in county court, are $51.09.
The portion of 50 USCA, sec. 510 et seq., deemed here material is set out in the margin.1 *588
It is to be noted by reference to the statement in the margin that the utmost service of a person appointed to appear for a soldier in the military service, either required or suggested, is toward procuring such temporary stay of proceedings as is necessary to protect the soldier's interests. The instant soldier was living in Milwaukee and was sui juris at the time the probate proceedings were instituted and he had interposed no objection to the probate of the will. As above stated, he was a brother of Mildred Wolf, and her interest was identical with his. Mildred alone objected to the probate of the will and appeared by attorney and in person at the first trial, and she prosecuted an appeal to the supreme court. We perceive no need and no authority under the statute for Mr. Redford to do anything further for Harold than to apply for a stay of proceedings in his behalf. To do that, only one appearance before the county court was necessary, and we consider that $75 is reasonable compensation for what he did toward procuring that.
Besides the procuring of a stay of proceedings being the only relief provided by the Soldiers' and Sailors' Civil Relief Act to be immediately granted in behalf of a soldier it is to be noted that par. (4) of sec. 520 of the act provides that if *589
any judgment is rendered against a person in the military service during his service or within thirty days thereafter, and it appears that such person has been prejudiced by reason of his service in making his defense, the judgment may on his application within ninety days after the termination of his service be opened by the court rendering the judgment and the person be "let in to defend; provided it is made to appear that [he] has a meritorious or legal defense to the action or some part thereof." We consider that this provision afforded all the relief for the protection of Harold that he needed in view of the denial of the court to grant a stay and that that relief was open to him on his discharge from service. All of the services and expenditures of Mr. Redford supposedly in defense of Harold's interest were therefore unnecessary, and unauthorized except for one appearance to move for a stay. SeeMartin v. Rolfe,
The appellant contends that under sec. 324.29(4), Stats., enacted by the Wisconsin legislature by ch. 319, Laws of 1945, he is entitled to compensation. It is to be noted that under that statute he could only be compensated for such services as were reasonably necessary to be performed pursuant to his appointment. Opposing counsel contends that he cannot be compensated at all under that statute because the statute is not retroactive. Whether the statute is retroactive we consider not necessary to determine because we consider that the appellant is entitled to recover to the extent above stated for another reason.
In Will of McNaughton (1909),
Ch. 345, Laws of 1945, amended sec. 324.13(2), Stats., and in so doing struck out the provision of the 1907 act that the guardian ad litem must be paid out of his own estate if he has any. In In re Donges' Estate, supra, it is suggested that it is doubtful whether this would not constitute want of due *591 process, but that is here immaterial because the appellant is in the same situation as far as compensation is concerned as an infant without means of compensation. Harold Wolf is not liable to compensate the appellant for he neither employed him nor consented to nor had knowledge of appellant's appointment or rendition of service. What the legislature could do by way of compensation of a guardian ad litem out of the general estate the court could do of its own motion. We consider that independent of other grounds the county court might and should have allowed compensation to the appellant to the extent indicated. As to the amount of that compensation it is pointed out in the McNaughton opinion that it should be measured by compensation commonly allowed to those in the public service, rather than the fees ordinarily chargeable between attorney and client. It is of some bearing that the compensation allowed attorneys appointed to defend indigent defendants is fixed by statute at $25 per day for services rendered in open court. The amount customarily allowed by this court to the attorney for the board of bar commissioners is $50 per day for appearance in this court. The bar commissioners are allowed $10 per day by statute, sec. 20.65, Stats. We think the amount first above suggested is all that should be allowed as compensation for the services required of the appellant pursuant to his appointment.
By the Court. — The order of the county court is reversed, and the record is remanded with directions to enter an order for payment of $75 by the executrix out of the funds of the estate. No taxable costs are allowed but the appellant will pay the fees of the clerk of this court.
"Sec. 520 (1). In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. . . . If [such] an affidavit is not filed . . . no judgment shall be entered . . . until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. . . . And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this act.
"(2) . . .
"(3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him. . . . But no attorney appointed under this act to protect a person in military service shall have power to waive any right of the person for whom he is appointed or bind him by his acts.
"(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person . . . not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant . . . let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. . . .
"Sec. 521. At any stage thereof any action or proceeding in any court in which a person in military service is involved, . . . shall, on application to it by such person or some person on his behalf, be stayed as provided in this act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service."
Addendum
The following opinion was filed September 9, 1947: The appellant moves for a rehearing on several grounds, one of which we consider well taken. The court below denied appellant recovery. We directed recovery off $75 but directed that it be without *592 costs. We consider that we erred in denying costs. No occasion for reargument or further briefs seems required. The portion of the mandate denying costs to the appellant is vacated and there is substituted therefor the following: "The appellant will recover costs of the appeal" and $25 costs on the motion for rehearing.